HomeMy WebLinkAboutMinutes BZA 01-08-01
CITY OF CARMEL AND CLAY TOWNSHIP
BOARD OF ZONING APPEALS
JANUARY 8, 2001
The regularly scheduled meeting of the Carmel Board of Zoning Appeals met at 7 p.m. in
the City Courtroom of Carmel City Hall, Carmel, Indiana on January 8, 2001. The
meeting opened with the Pledge of Allegiance.
Members present were: Leo Dierckman, Michael Mohr, Earlene Plavchak, and Pat Rice
Steve Engelking, Director, Terry Jones, and Laurence Lillig were present representing the
Department of Community Services.
The following items are currently tabled: Lakes at Hazel Dell, Section 1, Lot 16, UV-
133-00; V-156-00; V-157-00; Item 6h., Lakes at Hazel Dell, Section 1, Lot 17 UV-134-
00; Items 7h-10h., Lakes at Hazel Dell, Section 1, Lot 237, UV-135-00, V-153-00, V-
154-00, V-155-00; Item 11h., Lakes at Hazel Dell, Section 1, Lot 238 UV-136-00; Item
12h-15h., West Carmel Center, Block A - Wendy's V-180-00; V-181-00; V-182, V-183-
00; Items 27h-24h., Hazel Dell Corner, Lot 1 SU-198-00; V-199-00, V-200-00, V-201-
00, V-202-00, V-203-00, V-204-00, V-205-00; Items 35h-36h., and Pearson Ford V-
220a-00, V-220b-00.
Chairman Pat Rice reviewed procedure, after which the public hearing was opened.
Public Hearing:
H.
Lattice Communications Telecommunications Tower (SE-114a-00; V-
1h-1h.
114b-00
. Petitioner seeks Special Exception approval in order to establish
a wireless communications facility. Petitioner also seeks a Developmental
Standards Variance of Section 26.2.17(A). The site is located northeast of
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106 Street and Gray Road. The site is zoned S-1/residence.
Filed by Douglas B. Floyd for Lattice Communications.
Following some discussion about whether or not to hear the petition, since the filing
fees have not been paid, a five-minute recess was called by the Chairman so that legal
counsel could advise.
Upon resumption of the meeting, Doug Floyd, with offices at 970 Logan Street,
Noblesville, Indiana, spoke for the petitioner. He explained that this Docket is a joint
application from Lattice Communications LLC, Sprint, and VoiceStream. Sprint
and VoiceStream have applied to use their equipment from two antennas located
on this facility; two additional antennas will be used by Cellular One and Verizon, also to
be located on this tower. The latter two are committed to Lattice (the owner of the
tower), but are not co-applicants.
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Dean Meiser,principal of Lattice Communications with offices in Cincinnati, Ohio was in
attendance as well as Bob Gerdnick, professional appraiser. Mr. Gerdnick will share his
opinion about the value of real estate surrounding the tower site. Representatives of
VoiceStream, Sprint, Cellular One, and Verizon Wireless were also in attendance and
prepared to tell of the need for these facilities.
Mr. Floyd referred to a map that was included with materials furnished to commission
members showing the geographic location. Lattice Communications has facilities across
the country to provide access to its equipment for antenna of wireless carriers. They have,
through construction, acquisition, and expansions, accumulated a system of towers across
the country. Lattice can provide a seamless service across the country to national
providers, and also complement the local purpose of minimizing the number of structures.
Mr. Floyd reminded the board of a November meeting in which he advised the board that
Lattice Communications supported Vertical Real Estate (a Fort Wayne firm in a business
similar to that of Lattice) in its application on a site about .6 mile east of the one under
consideration this evening. Lattice realized the need for more carriers than were provided
on Vertical Real Estate’s request. Vertical advised the board that Nextel was planning to
locate on a tower with three paging companies. Analysis was done with reference to what
could be provided through the real estate site, and results indicate that the site would be
inadequate to service the community.
Mr. Floyd pointed out the ownership arrangement between Lattice Partners and Cinergy,
significant here because of a unique situation for an electric utility needing power
substations. Through Cinergy, we have learned there are Midwest substations in both
Ohio and Indiana that provide ideal locations for wireless communications facilities. This
case is about adding one more pole on an existing substation that generates electric power
for Cinergy, to provide antennas affixed to the pole. This pole would be 40 feet taller than
the tallest, existing pole. There are poles on this property already that are 80 feet tall to
deliver power and provide adequate distribution of power to the service areas of Cinergy.
The petitioner is seeking to add one more pole with four antennae to provide wireless
communication signals that are necessary for the providers already described. The effort
is to centralize utilities into one location for community benefit rather than spreading them
out over several areas.
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An area map shows the site south of 116 Street and east of Gray Road. Looking north
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from 116 illustrates the number of residents that could be served by the wireless antenna
located on the tower at the Cinergy substation. The substation was built prior to
construction of many of these homes. Another map shows the intensity of residential
development in the area. A site plan shows how the property would be affected by the
development. A 60X55 foot buffer is located within the Cinergy property, inside the fence
of the power substation. The distance from the property line to the fence line to be placed
completely surrounding the facility is 61 feet; it is an additional thirty feet from the base to
the tower; the tower is ninety feet from the property line. The ordinance requirements,
resulting in the need for a variance, suggest a setback distance of 120 feet plus one foot
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for each additional foot of the tower, giving a total of 220 feet. The petitioner is
requesting relief from that requirement to allow the tower to be within 90 feet of the
property line.
Mr. Floyd showed a rendering of an 80-foot tall tower, used for conveying transmission
cable into the power substation. Those same lines are shown on three more poles 80 feet
tall, then the lines come into the substation where they are brought down to grade level,
and introduced to transformers that have a function of conveying the power.
On a computer-generated photo, the base of the enclosure is shown with a six-foot high
wood fence; the structure is located inside in the middle of the 60 x 55 foot area. All the
antennas are slick-mounted, hugging the pole. This structure is forty feet taller than the
one just shown and located immediately adjacent to the area. As shown, the structure
would accommodate five carriers--four are committed, and one additional could be
accepted.
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Mr. Floyd then referred to a petition on 131 Street near Spring Mill Road last August. It
was a similar situation in which a Cinergy substation was used for the location of a 120
foot monopole in a developed residential area--development followed the construction of
the substation. That application was heard, and approved by this body. At that time an
exhibit was presented, showing all the structures that could potentially be used for some
type of wireless antennas. In this case, we have identified sites within a two-mile radius of
the proposed site, and it shows we have exhausted potential locations. Mr. Floyd pointed
out current coverage for VoiceStream and Cellular One, and stated the proposal would
cover areas not currently covered by existing towers. Sprint was asked to do an analysis
of where the next available antenna might be placed on the Vertical site.
In conclusion, Mr. Floyd said the proposed tower is necessary, it accomplishes the
purpose for location, and is a site that provides all necessary requirements in a safe
manner.
Mr. Floyd submitted a written report by Mr. Gerdnick indicating there would be no
detrimental impact on property values adjacent to the proposed tower.
Members of the public were invited to speak in favor of the petition; no one appeared.
Ms. Rice read a Memorandum from Mayor Brainard relative to this petition which would
allow construction of a tower via special use and variance. Mayor Brainard expressed his
concern for a negative impact on the quality of life for residents of the Kingswood and
Sycamore Farm Subdivisions. Mayor Brainard was hopeful that the petition and variance
would be defeated by the Board.
Members of the public were invited to speak in opposition to the petition.
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Gregory K. Silver, 342 Massachusetts Avenue, Indianapolis, attorney for the Homeowners
Associations of Kingswood and Sycamore Farm, appeared before the Board. Mr. Silver
introduced Carol Keefer who would be delivering remarks, due to the fact that Mr. Silver
was summoned to the Carmel City Council meeting in the Chambers.
Carol Kiefer, 4960 Regency Place, Kingswood Subdivision, said the property in question
is itself relatively small, and is entirely surrounded by Sycamore Farm and Kingswood
Subdivisions. Ms. Kiefer showed the proposed site on a map, and the limited open space
where the substation would be placed. On the Kingswood side, the proposed structure is
61 feet from the property line and approximately 106 feet from the back door of two
closest homes in the Kingswood subdivision. There are five bases on which the Board will
make a decision on the special use request: Public health, safety, and welfare; Effect of the
use on surrounding property; Need established for the service; Undue hardship on the
petitioner; and compliance with the Comprehensive Plan.
Because of the height of the proposed tower, if it would topple or be affected by storm
damage, it could fall on one of the nearby houses. The use and value of the surrounding
area would be affected by a 12-story tower--it would be a highly visible eyesore, and
could dominate the homes surrounding it. There is no landscaping adequate to hide a 12-
foot tall tower. If the 220 foot buffer should be removed, the spirit of the developmental
standards will be defeated. Any exception should arise from the need to provide public
facility service, not from the intertwining of Lattice and Cinergy. The petitioner will not
suffer undue hardship by denial of the petition because there is an approved tower on
Hazeldell approximately six-tenths of a mile away. It would be possible to increase the
size of the approved tower and perhaps add a tower at that location, both options given at
an earlier hearing on the Vertical site. That property is privately owned and surrounded
by a gravel pit and would therefore not be intrusive to nearby residents such as this
petition.
Finally, this proposal does interfere with the Comprehensive Plan. As a resident of Carmel
for twenty years, Ms. Kiefer feels piece-meal cell tower construction is a bad thing. The
towers should be located in areas where they can be camouflaged--the current proposal
does not meet that burden.
Jack Walters, real estate appraiser, addressed the Board and expressed astonishment at
what the petitioner is requesting. After preliminary investigation, Mr. Walter found that
the proposal would certainly have an adverse effect on the surrounding properties--as
much as 5 to 10% on those properties immediately surrounding the projected tower, and 3
to 5% on lots extending from the original perimeter. Statistics show that the homes in
these two Subdivisions run between $225,000 and $325,000. This means a considerable
decrease in property value. Mr. Walter said he has appraised houses around the Carey
Road tower north of Smokey Row, and found that relocation companies, and corporations
have taken a tremendous "hit" just to get the properties sold. The current proposal would
adversely affect the homeowners in the immediate area.
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Jan Gross, 4943 Regency Place, Kingswood, showed an example of the view her family
would have from their home if the proposed tower were to be constructed. The structure
would rise at least 80 feet above any other structure within view. Ms. Gross asked the
Board to enforce the Ordinances that would protect the Carmel residents from this type of
installation.
Myron Martin, 9-year resident of the Kingswood Subdivision, said the Board is being
deceived by the height of the pole--this is not "just another pole." The reality is the
existing poles are more like 60 feet. Another issue to consider is the quality of life. From
being on the “Parade of Homes” in 1988 to the proposed monopole is a deterioration from
the character of the Kingswood Subdivision.
Tom Poyser, 4936 Regency Place, 10 year resident of Kingswood, said the power
substation was in place at the time he purchased his home. At his back yard, it is 61 feet
from the proposed cell tower area. Kingswood was chosen as a home site because of
visual and physical privacy in the back yard as well as a natural screening of the view of
the existing power substation. The view from the family room is all trees, and even
looking across the unused portion of the substation, PSI has done an excellent job of
landscaping in order to protect the residents of Kingswood and Sycamore Farm. A cell
tower this close, no matter how tall, cannot be screened. A 12-story structure would
destroy the visual pleasure that his family has enjoyed from every north window of their
home and it would significantly reduce the resale value of their home. Secondly, there is
an issue of safety. Should the single tower fall directly south, the mass would end up in
the center of Mr. Poyser's home. Mr. Poyser asked the Board to deny the petition.
Bruce Heldt of 11265 Regency Lane, Kingswood, spoke as a resident of Kingswood and a
member of the Carmel Parks Board for three years. He is a substantial cell phone user and
understands the need for cell towers. In Mr. Heldt's opinion, this location is not a suitable
site for the cell tower. In conversations with Randy Auler of the Carmel Parks, and Al
Patterson of Hamilton County Parks, it would seem that the Parks Dept. might be
receptive to consideration of cell towers on park land.
Rebuttal: Doug Floyd referred to the appraisals presented to the Board members this
evening. Mr. Floyd said this particular site was selected because there are gaps in service
areas of the four carriers that would like to locate on this monopole. Contrary to
neighbors’ concerns about a collapse, such a tower would collapse within the fenced area
rather than outward. Also, there are no incidents of collapse of this type of pole, even in
Florida after hurricane Andrew. In regard to public safety, this is good solid engineering
involved here and the pole will not collapse outside the enclosure.
Lattice is sensitive and concerned about neighborhood values. While no one wants to
look at towers on a daily basis, it is a necessity for the public's need for communication.
Locating on a utility site makes sense. Quality of life is not one of the criteria for
considering special exceptions or variances. Mr. Floyd was surprised that the Mayor sent
a letter on city letterhead, possibly suggesting his opinion should supercede that of Board
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members, rather than as a citizen of Carmel. Mr. Floyd also referred to Mr. Silver’s
comments and his association with the Mayor. Mr. Floyd wanted to be assured that the
Memo was all the Board received from the Mayor.
Mr. Molitor responded that if any Board member had been contacted about this matter in
such a manner as to maintain difficulty in being fair, impartial, and objective, they should
recuse themselves. Pat Rice polled the Board and it was determined that no member of
the Board had been contacted on this matter prior to this hearing.
Mr. Floyd also noted that the photographs shown by neighbors do not depict the type of
antenna intended for use here. Also, the height specifications referred to were provided by
Cinergy. Mr. Floyd asked for dispassionate consideration of the petition.
The public hearing was then closed.
Laurence Lillig reported that the Department recommends negative consideration of this
petition.
Michael Mohr had the following comments. There is a definite need for cell towers, and
their location should be carefully considered. Mr. Mohr thought the site was bad for a
power substation, let alone a cell tower.
Mr. Dierckman asked if Mr. Held's service coverage was adequate through Verizon; his
response was affirmative.
Pat Rice asked Counsel whether or not the Board was restricted in denying this petition
and if Quality of Life would be an issue in making a decision. Mr. Molitor responded that
the Board cannot discriminate against one carrier in favor of another--they must allow
carriers to have the opportunity to provide adequate service.
Ms. Rice asked the petitioner if they had explored other locations, such as the parks, and
was told they had not, because they would have to bring a structure to the site; in this
case, there are already tall structures on this property in the form of electric utility poles.
V-114b-00, Lattice Communications
Leo Dierckman moved for the approval of
Telecommunications Tower, DENIED
seconded by Earlene Plavchak. The motion was
with a vote of 0 in favor, 4 against.
After clarification of the petitioner’s desire to seek a decision on the special exception,
SE-114a-00,
knowing the variance was denied, Leo Dierckman moved for the approval of
Lattice Communications Telecommunications Tower,
seconded by Earlene Plavchak.
DENIED
The motion was by a vote of 0 in favor, 4 against.
A short recess was observed to allow time to clear the room.
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West Carmel Center, Block A – Walgreens (V-185-00; V-209-00; V-210-00;
16h.
V-211-00; V-212-00; V-213-00; V-214-00; V-215-00; V-216-00; V-217-00; V-
218-00)
Petitioner seeks Special Use approval to establish a pharmacy for
Walgreens. The site is located at 10595 North Michigan Road. The site is zoned
B-3/business and is located within the US 421 Overlay Zone. The petitioner also
seeks the following variances of the Sign Ordinance.
Filed by Kevin D. McKasson of Glendale Partners.
Dave Coots, 255 E. Carmel Drive, spoke on behalf of the petitioner, and reiterated that
special use approval was granted by the Board of Zoning Appeals at the November, 2000
meeting. The Plan Commission requested that before the sign package was presented, the
special study committee should undergo a review of the package and make a
recommendation to the full Plan Commission. That recommendation, presented at the
December plan commission meeting, was for three signs for the facility: a Walgreens sign
on the west elevation, a Walgreens sign on the north elevation; and a drive-through
pharmacy sign on the south elevation. The Plan Commission also suggested a ground sign
might be substituted for one of the wall signs. Walgreens has chosen to implement the
wall signs on the west and north elevation, 33.5 square feet (V-212-00 and V-215-00),
and a drive-through pharmacy sign, 12.6 square feet in size, on the south face of the
building (V-218-00). The department recommendation is for approval of these signs,
conditional upon compliance with the sign ordinance in terms of size.
The B-3 zoning restricts the size of signing to a maximum of ten square feet. A sign size
variance was requested, relative to the sign size chart. These sign sizes are all smaller than
the chart would permit for either freeway or non-freeway use. This evening, approval is
being sought for the Walgreens sign, red in color (approved by the plan commission) with
a white return, and that the size of the individually, internally lit letters be in keeping with
the size of the signs shown here. The other signage was part of the requests submitted
that made up the 10 signs originally; those are being withdrawn, however V-185-00
should be amended to allow three signs.
Members of the public were invited to speak in favor of the petition. None appeared.
Members of the public speaking against the petition were invited. None appeared. The
public hearing was then closed.
Laurence Lillig reported that the Department is recommending approval of V-185-00 as
amended to allow three signs: V-212-00, a 33.5 square foot wall sign on the west façade;
V-215-00, a 33.5 square foot wall sign on the north façade; V-218-00, a 12.6 square foot
wall sign on the south façade.
There were no comments or questions from the board.
V-185-00 as amended, V-212-00, V-215-00, and V-
Leo Dierckman moved to approve
218-00, West Carmel Center, Block A - Walgreens.
Following a second by Earlene
APPROVED
Plavchak, the motion was 4 in favor, 0 opposed. Findings of fact were
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unavailable, and will be completed at a later time. Mr.Lillig announced that the
department no longer provides these forms; it is up to the petitioner to provide them for
the board.
Manders Use Variance (UV-221-00)
37h.
Petitioner seeks approval of a Use Variance in order to continue to operate
a business in a residential district. The site is located at 10460 Spring Mill
Road. The site is zoned S-2/residence.
Filed by E. Davis Coots of Coots Henke Wheeler for Karl L. Manders
Dave Coots, 255 E. Carmel Drive, represented Mr. Manders. Mr. Coots described the
single family residence at the address, the parking area and back yard, the space from the
back of the house to the creek, and distributed photographs of the site. Mr. Manders
purchased the facility two years ago, occupies it, and operates a computer-based
trademark and copyrite monitoring business that uses the computer internet system. The
business is operated from the lower level of the house, which is three-story in design. Mr.
Manders employs five persons who monitor the internet use of trademarks and copyrights.
The business is run five days a week, Monday through Friday.
Mr. Coots offered personal data about Mr. Manders. Mr. Manders feels that his
circumstances make the use of the residence a hardship that entitles him to the use
variance. No clients come to the residence. Mr. Manders has arranged for his employees
to arrive each morning in one vehicle; one vehicle leaves later in the day to take the
employees off premises. Mr. Manders is sensitive and cognizant of the traffic issue as
being a concern within the neighborhood.
Mr. Manders and his wife are separated and have been for two years. Mr. Manders is the
custodial parent responsible for their 17-year old boy who has Down Syndrome. The
child lives with Mr. Manders 24 hours per day and attends Carmel special education
program. The boy cannot be left unattended; he does not speak, but does respond and has
some understanding, but Mr. Manders is unable to leave the boy to operate a business
outside his home.
There is no signage on the building, no clients visit there, and the business does not create
a traffic concern. Additionally, the petitioner commits to no change in the exterior of the
building, and this could be considered a personal use variance application to Mr. Manders
only. In the event he were to sell the home, the use variance would terminate and would
not be transferable to any purchaser of the property or any purchaser of his business. The
petitioner also agrees that when the personal circumstance that creates the hardship is no
longer viable, the Board will be at liberty to revoke the use variance being requested.
It is the petitioner's position that the granting of the variance will not be contrary to public
interest due to the existence of special conditions noted above. Enforcement of the
ordinance will constitute an unnecessary hardship on Mr. Manders, i.e. the Down
Syndrome child that lives with him. The granting of the variance would not be injurious to
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the public health, safety, and morals and general welfare of the community because the
business is conducted internally. Mr. Manders does have a gardener and a once-a-week
housekeeper that come to the house. Because of the terrain and layout, and natural
screening that exists, there would be no adverse effect on neighboring homes. The need
for the variance arises from the natural condition peculiar to Mr. Manders' occupancy of
the house and the family relationship that exists. The granting of the variance does not
substantially interfere with the Comprehensive Plan because the residential character and
use of the property is not being changed with the special conditions added. The use will
not have a negative impact on the adjacent properties.
Mr. Coots requested the granting of this Special Use Variance and that it be limited to Mr.
Manders and not transferrable. The variance would terminate upon sale of the property or
cessation of the business, it would end when there is no longer the need required for Mr.
Manders to maintain the home for his son, Carl Daniel, and the variance would be
reviewed annually by the Department. Either party would then have the opportunity to
appear before the Board if a violation were found to be in existence.
Members of the public were invited to speak in favor of the petition; no one appeared.
Members of the public were invited to speak in opposition to the petition; the following
appeared:
Dick Wickliff, residing at 10300 Spring Mill Road, two houses south of the Manders
property, spoke as president of the neighborhood association that includes the subject
property. Mr. Wickliff spoke on behalf of the adjacent property owners, Patricia Carson,
across the creek, Alan Klineman across the street, Ed Ganyan to the north, and Ms. Wynn
to the south. In 1998, Mr. and Mrs. Manders purchased the property. Also purchased
from the previous owner were enough furnishings to continue the residential appearance
of the site. Shortly thereafter, Mr. & Mrs. Wickliff visited the home to welcome the
Manders to the neighborhood. The only persons there were several adults, who described
themselves as friends. These "friends" have since been identified as employees.
Subsequently, several vehicles were noticed arriving each weekday morning and departing
at the close of business hours each day. The Wickliffs asked Mr. Manders about the
vehicles, and why he had not moved in as yet. Mr. Manders said the vehicles belonged to
friends and service people, and that the family would move in the following weekend or
shortly thereafter. To Mr. Wickliff's knowledge, the Manders did not move in that
weekend, and on Monday morning, the same vehicles returned at the start of the business
day and left at the end of the day. At that time, there began to be regular deliveries by
companies such as RPS, Federal Express, etc. We then realized that the Manders had not
moved in, and indeed the home was the site of a business. This same situation exists
today.
Mr. Wickliff went on to say that the neighbors discovered the name "Continental
Enterprises," a detective agency and armored car service. Upon calling the Indianapolis
Business Library, Continental Enterprises had a telephone listing of 575-8793 and a
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business address of 141 First Street, SW, Suite 16, Carmel, (The Lumberyard Mall). The
listing also indicated 5 to 9 employees. The business phone number has menu options for
Karl, Carrie Johanson, Josh, Joe, and Michael Jones. In visiting the business location in
the Lumberyard Mall, we discovered a dental lab in suite 16 with no ties to Continental
Enterprises. Mr. Wickliff was told that others had been there looking for Continental and
Mr. Manders. As of this date, 575-8793 is still listed as the number for Continental
Enterprises and the address is 10460 Springmill Road.
In late October 1998, a complaint was filed with the Department of Community Services.
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On October 23 (six weeks after the business had moved in) Building Inspector Jeff
Kendall visited the site and was met by an alleged cousin and Mr. Manders, who advised
they had owned the property for a short time, and they were in the process of moving in.
Mr. Manders said the vehicles on the premises were there for service purposes. On
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October 29 Mr. Manders visited us in response to the complaint; he told us his business
was in Westfield, and that the vehicles each day belonged to friends. There was basically
no response as to why the friends and deliveries were there, and why he was there each
day if his business was in Westfield. Mr. Manders furnished the Department staff with a
different phone number (694-0705).
In September 1999, almost a year after Mr. Manders purchased the property, Jeff Kendall
again visited the site, and was met in the driveway by Mr. Manders. Mr. Manders told
Mr. Kendall that the neighbors were upset with his daughter, her friends, and his mentally
challenged son. Mr. Manders also explained that there was no business on site, that the
phones were being answered at Springmill Road and were then routed to his Westfield
location. Soon after, the neighbors noticed an absence of many of the regular vehicles
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during business hours; the vehicles were soon discovered in a parking lot at 103 Street.
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The employees were being shuttled back and forth from the parking lot at 103 to the
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Springmill Road address. In fact, two employees were picked up at a bus stop at 96 and
Meridian Streets, brought to the Manders' property, and returned at the close of business
hours.
A log of traffic activity from October 9, 2000 through today’s date was submitted to the
Board. Pages 1 through 4 of the log cover a 4-week period prior to the filing for the
variance, a period of time the applicant insists that no business activity was occurring. On
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October 25, 14 vehicles were logged in and out of the site. On November 3 Mr.
Manders filed for a special use variance. In that request it was stated there were no more
than two employee vehicles driven to the residence--the neighbors have identified 12
regular vehicles. On the date of the special use filing, we logged 8 vehicles. In September
1999 Mr. Kendall referred the matter to Mr. Terry Jones, Building Commissioner, who in
turn referred it to the City of Carmel Law Department.
To the best of the neighbors' knowledge, no one has been in residence at 10460 Springmill
Road since its purchase over two and one-half years ago, and no one lives there now. We
have observed the Manders children being dropped off in the afternoon by the school bus.
When that occurs, the mother, (or someone else) meets the school bus and immediately
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drives them away from the house. We have never observed anyone boarding the bus in
the mornings at this site.
Mr. Manders states in his application that he maintains a home for himself and his mentally
challenged son who requires 24 hour care and supervision in a residential setting, making
it impossible for the applicant to conduct his business from another setting. In all of this
time, 2 1/2 years, we (the neighbors) have watched this situation and have yet to see Mr.
Manders leave with anyone in his vehicle. Mr. Manders leaves at the end of the day,
alone, and arrives at the home in the morning, alone.
As members of a residential community, we do not want commercial activity in our
neighborhood. The home occupation ordinance was designed to protect the residents
from commercial intrusion. By definition, the ordinance refers to the site as a dwelling
and further describes it as a building or portion thereof used primarily as a place of abode
for one or more human beings. The site has not and is not being used as a dwelling--it has
been converted to an office building. The business at the site is neither incidental nor
secondary. The business does not utilize 15% or less of the premises, it utilizes 100% of
the premises. All of the people, traffic, and delivery vehicles, have changed the character
of the dwelling. After two and one-half years, the applicant has finally admitted to having
outside employees; delivery vehicles exceed two per day. In September 2000 the City of
Carmel notified Mr. Manders that its investigation revealed the business being operated
from the site was not in compliance with City of Carmel Code Section 10.6 for a Home
Occupation. Mr. Manders was given until Friday, October 27 to cease operations or apply
for a variance or a rezone.
The neighbors are asking for denial of the variance application at this time.
Mark May, 10381 Spring Highland Drive, president of the Reserve neighborhood
association, located directly east of the subject site, said the neighborhood is rich in zoning
history. In October, the Board received a request to rezone property just down the road.
Mayor Brainard submitted a letter, and asked the Board to reject any commercial activity
west of Springmill Road. Under the zoning ordinance, this property and surrounding
properties are zoned S-2. Conversion of the subject property would be out of sync with
surrounding properties. The traffic log, delivery vehicles, and reported conversations with
Mr. Manders leads us to believe that no one resides at the home. The Down Syndrome
child either spends his time at school or at the family home in Westfield with his mother.
Mr. and Mrs. Manders are neither divorced nor separated. Mr. Manders does leave the
home each day and returns the following work day. Mr. Manders states that the need of
the variance arises out of the son's condition; however, the condition is not due to the
home or the neighborhood, but is a medical condition and has nothing to do with the
property. The adjoining neighborhoods ask for denial of Mr. Manders' request for a Use
Variance on grounds that the request does not meet any statutory requirements needed for
approval.
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Mark Rattermann, 11257 St. Andrews Lane, real estate appraiser, spoke representing the
original Clay West Information Council and Crooked Stick homeowners. Mr. Rattermann
does not live near this property. Mr. Rattermann said he is strongly opposed to the use
variance. If the variance were approved, it would be undercutting the enforcement arm of
the Clay Township Joinder Agreement that enables the City of Carmel to enforce land use
regulations. This petition is more than a request to allow a business use, it is also a
request to forgive past unlawful use of the property. Unless the city attorney is going to
prosecute the applicant for past activity, there will be no consequence for disobeying the
law for the past two years and it will lead to others doing the same thing. Enforcement of
the zoning laws is right here and right now. There are properties along Range Line Road
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and Main Street, 96 and Michigan Road, or along Meridian Street that are zoned for
business. Mr. Manders could even purchase a new building in the Village of West Clay
that would permit a business in the lower level and an apartment above. This may be a
ruse for the applicant to get into the Carmel Clay School System; if that is the case, the
school system should be concerned about this as well. For the Board to approve this
business in a residence sets a terrible precedent--it should be turned down.
Rebuttal: Dave Coots said that since this is extremely fact sensitive, he would like Mr.
Manders to address the Board and speak to the issues brought up by Mr. Wickliff and Mr.
May. Dave Coots distributed photographs of the interior of the residence provided by Mr.
Manders. Mr. Coots said Mr. Manders takes his Down Syndrome son to school, and the
bus brings him home. In response to Mr. Rattermann's comments, Mr. Manders is titled
on this piece of property and as such, entitled to send his children to school in Clay
Township.
Mr. Manders then addressed the Board saying that he is in a difficult situation. Statistics
are that 85% of marriages where there is a Down Syndrome child involved end in divorce.
It is a difficult thing to have a handicapped child and his son has extreme speech
impediments, he is 17 years old and cannot be left alone. Mr. Manders said he is not
divorced; he and his wife have some serious problems, a lot of which relate to the son and
the care that he needs. The son, Carl Daniel, needs intensive speech therapy; to live with a
child with Down Syndrome is a 24 hour commitment. Mr. Manders said he has other
children; two step-daughters that are grown with children of their own, and two sets of
twins--11 years old and a twin to Carl Daniel who is perfectly healthy. Mr. Manders said
he is concerned about the relationship Carl Daniel has with the other children, and the
effect of his marital problems on his children. Mr. Manders said that as requested things
change, he will be able to conduct business in a completely different way. Mr. Manders
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said he tried to do business at 802 299 Street that had been a business site and was
purchased by Mr. Manders many years ago. It did not work out because it is next to his
other property in Westfield. Mr. Manders was hopeful that his wife and oldest daughter
could take care of Carl Daniel, but it didn't work out. According to Mr. Manders, there
was a transition period where he would be at home with Carl Daniel during business hours
and employees did end up going to the residence. That is not how it started, but that is
how it ended up. There have never been 14 cars in and out, unless they are lots of friends.
Mr. Manders said his employees must eat lunch at the same time so there is not a big
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traffic pattern. That is not to say that never has there been three cars go out, but the
employees have been told they must do that.
Mr. Manders said Mr. Bang, neighbor to the south, is considered a friend; his wife has
been over to his home, and Mr. Bang said he enjoys having the Manders in the
neighborhood and hopes they are able to stay. Mr. Bang would not appear before the
Board to publicly say that because he does not want problems with his neighbor to the
south, Mr. Wickliff. Mr. Manders said he lives in the residence with his son, he takes him
to school in the morning and returns. Sometimes his son goes home, sometimes his wife
comes and picks him up--he is not forbidden to go home--he has two brothers and sisters!
He does not understand divorce; he does not understand what is going on.
Mr. Manders said he is prepared and willing to make conditions on the application.
The public hearing was then closed.
Terry Jones reported for the Department. Mr. Manders had knowledge of the rules since
1998. It has taken some time to get to this point. Without sitting on an hourly basis and
watching the house, it is difficult to determine the status. We do have a video tape that is
a part of the file. There was enough irregularity to warrant the department turning this
over to Doug Webber of the City Law Department.
Doug Webber, Carmel City Law Department, addressed the Board. What is being left out
is the fact that Mr. Manders did not permit an inspection inside the premises. The legal
department has no independent evidence other than the neighbors complaints and traffic
logs. A private investigator was hired to determine whether or not there was business
activity at the premises. Mr. Webber confirmed that from July 13 to July 21 there were
between 5 and 7 employees arriving at the site at approximately 8:00 AM and leaving
approximately 5:15 in the evenings. Some of the employees were transported to the
MacMillan parking lot. It is clear that there is a business being operated at this site. A
letter was drafted and sent to Mr. Manders on September 28 that basically alerted him that
he was in zoning violation.
Terry Jones stated that a home occupation is a permitted use within the framework of the
Comprehensive Plan, but a Special Use Exception from the Ordinance to operate a
business would not be consistent with the Comprehensive Plan. The department is
recommending unfavorable consideration of the petitioner's request.
Comments and questions from members of the Board:
Michael Mohr asked Terry Jones if he had visited Mr. Manders at the site and asked him if
a business was being operated from the site. Terry Jones said has been to the site as well
as Laurence Lillig and Jeff Kendall. On a site visit in September 1999, Mr. Manders was
told that if he was running a business and did not meet the home occupation ordinance, he
was in violation--Mr. Manders said he was not running a business from the site.
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Leo Dierckman asked Mr. Wickliff if it would be acceptable to him if the variance is
granted as proposed by the petitioner. Mr. Wickliff said the structure exists as a dwelling,
a residence, and a commercial business is totally unacceptable.
Terry Jones said one of the issues has been whether or not Mr. Manders was running a
business from the residence. Mr. Manders has now admitted to running a business from
the premises.
Leo Dierckman asked the name of the business. Mr. Manders said it is Continental
Enterprises. They are a detective/investigative agency--armored car service is included in
the act. The only thing Continental does is property research for companies such as
Volkswagen, Porsche, etc., however, they do not actually go out and do investigations,
they do not have a general practice and try to discover people who are selling counterfeit
merchandise. Continental Enterprises is not open to the public. Their clients are in New
York, Los Angeles, San Francisco, etc.
Leo Dierckman asked about the number of vehicles that have been logged entering and
exiting the site. Mr. Manders said he has many friends and relatives who visit the site.
Leo Dierckman asked Mr. Manders if he could comer over to his home early in the
morning for a visit, since Mr. Manders lives there and would be in residence. Mr.
Manders said he might be a little defensive about that but he would prefer a regular-type
visit rather than an official inspection of his home.
John Molitor, Counsel, said that certainly site visits are allowed.
Terry Jones said one of the issues has been whether or not Mr. Manders was running a
business from the residence. Mr. Manders has now admitted running a business from the
premises.
Earlene Plavchak asked if the variance were not granted, what would change. Would the
owner be required to vacate the property…what would happen, what is the consequence?
John Molitor responded that the City would charge the owner with a violation and assess
fines and penalties from the time the violation began. It is the Board's job to weigh the
evidence and come to a determination.
Michael Mohr said that based upon information presented, he wouldn’t expect to gain
more information than gained this evening. Mr. Manders has admitted he is running a
business at this site and we need to look at the information presented and come to a
decision.
Earlene Plavchak suggested that while Mr. Manders' personal situation is regrettable, he
could probably find a more appropriate location to conduct business that falls within legal
guidelines.
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Michael Mohr asked Mr. Manders how many nights, out of 365 in a year, does he spend
with his son at the Springmill address. Mr. Manders' response was "The vast majority, 5
days out of 7--I've got two little kids at home, you know, I'm not divorcing, I'm a little bit
sensitive because there are obviously personal issues and my personal life that I don't want
to drag before the whole world….. It is not by any means certain that a year from now
that we would be in this situation. If you asked me six months ago, I guess I wouldn't
have said that we would be in this situation now, but a year from now, things may be very
different. I would hope that my life certainly wouldn't stay at the point it is right now."
Pat Rice asked Mr. Manders where "home" it, because he mentioned his son going home
and it was not the Springmill address. Mr. Manders said home is 10460 Springmill Road.
"When I got married, we moved to my house in Westfield. My wife got pregnant on our
honeymoon, we were there when he was born. But this is a new place, I have been there
for 2 years. When I talk about his home to him (Carl Daniel) this is where his brothers
are--he does not like the situation--he is torn between the two. Where is home? Home is
with me, for better or worse, home is with me at Springmill."
Again in response to questions about home, Mr. Manders said, "I am at Springmill five
days a week. Sometimes I am with my wife, I own both places, I am married, and the
situation is that I do have a business there and I do stay there some nights….it is a difficult
situation…."
Michael Mohr asked Mr. Manders how many nights his son spends with him and at what
address. Mr. Manders said "Other than the weekends, he is normally with me, Monday
through Thursday nights." Mr. Manders business is open Monday through Friday.
Pat Rice stated that the Board of Zoning Appeals exists for such appeals. The decisions of
the Board are not to be taken as precedent setting. While Ms. Rice's inclination was for
compassion due to the circumstances Mr. Manders finds himself in, after hearing such
conflicting statements and information during the presentation, she sees deception going
on. This concerns her, and she is not convinced that Mr. Manders has been entirely
truthful.
Mr. Coots said Mr. Manders agrees that asking for such a variance carries with it the
responsibility on his part to disclose information that shows his compliance. Certainly the
adjacent property interests will be watching as well, and this will be monitoring and self-
policing. Mr. Manders is prepared to accept the fact that if this locale is retained, and if it
breaks down after a one year period and there is violation, the variance would then be
denied. Mr. Manders' obligation would be to show proof of compliance.
Pat Rice then closed the public hearing.
Leo Dierckman moved to Table this item for 30 days until a site visit could be held. The
motion failed for lack of a second.
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Docket UV-221-00, Manders Use Variance.
Michael Mohr moved for the approval of
Following a second by Earlene Plavchak, the Board filled out Findings of Fact. The
DENIED
motion for approval was with a vote of 0 in favor, 4 opposed.
Parkwood Crossing, Building 1 – Verizon Wireless (V-222-00)
38h.
Petitioner seeks a Developmental Standards Variance of Section 25.7.02-10(b):
Number & Type in order to establish a sign on a façade that does not front a public
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right-of-way. The site is located at 250 east 96 Street. The site is zoned B-
6/business.
Filed by Steve Granner of Bose McKinney & Evans for Verizon Wireless.
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Steve Granner of Bose McKinney & Evans, with offices at 600 East 96 Street, appeared
on behalf of Verizon Wireless and Dukes-Weeks Realty Limited Partnership. Mr. Granner
referred to the informational packets provided to the Board members. Previous approval
was granted for GTE on the north façade facing 465, which has now become Verizon
Wireless, and which leases 39,000 square feet in Building 1, and is therefore a major
tenant in the building, utilizing space on several floors. The GTE sign has been removed
from the north side of the building. Since the initial construction of Building 1, Building
seven has been constructed to the north of Building one. Verizon wishes to replace the
GTE signage on the west façade of the building for visibility on US31/North Meridian
Street. Verizon seeks to use black letters with a red Z.
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The logo inclusion of a check-mark was removed prior to December 19 approval by the
Plan Commission. At that hearing, approval was granted for signage 32 feet in length,
with letter height of 33 ½ inches. One thing that has transpired since the Plan Commission
ADLS hearing was a request by the Nora Community Council for review of the signage.
The Nora Community Council took a negative position on both signs, and has provided a
letter to that effect. The sign requested is internally lit; it has a black face during the day,
appearing white or gray at night.
Members of the public were invited to speak in favor of the petition. None appeared.
Members of the public were invited to speak in opposition; the following appeared:
Janet Cox, 9540 N. Broadway Street, thanked Mr. Granner for notifying the neighbors of
this signage request. She did note that one resident, George Haerle who is with the Nora
Council, did not receive notice. The College Commons Association strongly opposes the
installation of the signage facing US31 because it is directly across the street from 324
houses. If we allow this to happen, it would be just the beginning of what will happen.
We’ve allowed all these five and six-story buildings, with two signs per building, two lit
parking facilities, and the clearing of beautiful trees which had been a sound barrier from I-
465. When she and her husband sit on their patio, which faces west, they see buildings
that are lit up 98% of the time. If we allow this sign to be erected facing US31, it will
continue on the other buildings, and we will see red, blue, gray signs like this, five stories
high, from our one story house. Ms. Cox pleaded with the Board not to allow the signage
and to consider the neighbors who were there first. It is unfortunate that CSO built
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directly in front of building number one. They could have gone 200 feet over, and have
given the space for them to put a sign up. Please don’t get this started.
Maynard Cox, architect, said building #1 has an opportunity to have a sign located to the
west of the building; the internal façade faces 465 and the General Electric sign is visible
for the same length of time it takes a car passing east to west on 465. Most of the signs
on the other buildings are not lit. Mr. Cox feels this is a "frontage issue."
By way of rebuttal, Mr.Granner said that without a variance, the ordinance would permit a
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sign on the south façade toward 96 Street. None of the buildings has signage on the
south side, even though the ordinance says that is where they should go. Building six has
two signs, both on the north facade facing 465; both are illuminated, though not all the
time. Building five has a variance to have a second sign. The first sign is Merrill Lynch
and is illuminated. The second sign is for Real-Net and was approved a year ago, but the
sign was never installed. Indiana Insurance, one of the first buildings in the business park
with its own sign package, has signage on the north façade; Mr. Granner does not believe
the sign is illuminated. Their ground sign is out in front. Building three has a sign on the
north façade facing the interstate. Building seven has approval for one sign, for CSO.
The permanent sign is not up, but when established, it will have a halo effect, with lighting
behind that flashes on the wall. In the case following ours, there is a request for a second
sign on that building, which will be illuminated. On building one, which had an illuminated
GTE sign on the north façade, we are now asking for the west side toward Meridian, 31,
which is zoned B-5. Throughout the development of this park there has been the
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orientation of the signage to be away from 96 Street. We feel what we are asking for is
consistent with other requests, and that it is better in relation to the nearby neighborhood.
Building six will likely have three signs, one facing 465, one facing College, and one facing
the interior.
The public hearing was closed.
The department has a favorable recommendation.
Mr. Dierckman discussed the internal lighting issue, that it continues to be a problem. The
lighting was talked about in another public forum, and the Board was assured that we
could rely on Duke and that they would be instrumental and have an impact. However, it
is obvious that that has not occurred. This member would like to see a written plan of
action on how to reduce the lighting. In addition, Mr. Dierckman would like a
commitment from the petitioner that if the variance is approved, they will never return to
ask for signage on the south and east side of building one and building seven, and building
four. It is safe to say that as part of the approval, Mr. Dierckman would ask for a
never
commitment from the petitioner that he would request signage on the south and
east sides of every building. Also, the petitioner would be required to submit a written
plan of action to reduce the lighting on the interior of the buildings, perhaps through an
energy reduction program and automatic kick-off or some such program.
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Steve Granner responded that it was hard to believe that there was any light spillage
across the property line that would approach point one foot candle. Normally, it is dark
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along 96 Street.
Mrs. Cox said that at 4 and 5 AM, the buildings are completely lit.
Mr. Molitor recommended that the project be tabled until a plan of action could be
presented.
Mr. Dierckman would like to move ahead, conditioned upon receiving a written plan of
action within 60 days. The effort should be commercially feasible.
Mr. Granner questions why there is a problem with the light spillage. Mrs. Cox does not
question parking lot lighting, but it seems to her that the cleaning crew goes into the
building and turns on all the lights; that is where the problem is.
Mr. Molitor said this is not something we can work out this evening. He is willing to
work with the petitioner on a written plan of action prior to the next meeting.
Docket No. V-222-00, Verizon Wireless, Parkwood
Leo Dierckman moved to TABLE
Crossing, Building 1,
until the meeting of January 22, 2001, seconded by Earlene
Plavchak. The motion was APPROVED with a vote of three in favor, one opposed
(Michael Mohr).
Parkwood Crossing, Building 7 – Morgan Stanley Dean Witter (V-
39h.
223-00)
Petitioner seeks a Developmental Standards Variance of Section 25.7.02-
10(b): Number and Type in order to establish a second wall identification
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sign on the north façade. The site is located at 280 East 96 Street. The
site is zoned B-6/business.
Filed by Steve Granner of Bose McKinney & Evans for Morgan Stanley
Dean Witter.
Steve Granner appeared before the Board requesting approval for a sign on the north side
of building seven. Mr. Granner referenced a letter from the Nora Community Council,
written by George Haerle. The CSO approval required a variance for their logo. Their
sign has a halo effect. The Morgan Stanley sign will be the same type, with an overall
length of 40 inches from top to bottom. The sign now will read only Morgan Stanley, and
will be positioned down further than in the illustration.
Mr. Dierckman asked Mr. Granner again for a commitment that there would be no light
signs requested on the south and east side of any of these buildings.
Leo Dierckman moved for the approval of V-223-00. Following a second, the motion
was APPROVED with a vote of four in favor, 0 opposed.
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L.Old Business
Lakes at Hazel Dell Subdivision, Section 1, Common Area 3 (SUA-88-00)
Petitioner seeks to amend the lifeguarding commitment made as part of the
Board’s approval (Docket No. SU-37-99; approved August 23, 1999) of the
amenity area. The site is located at 12474 Dellfield Boulevard West. The site
is zoned S-1/residence.
Filed by Joseph M. Scimia of Baker & Daniels for Zaring Homes of Indiana.
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Joe Scimia described the location of Lakes at Hazel Dell as south of 126
Street on the northeast side of Hazel Dell Parkway. At the time of special use
approval, a commitment was made to require the presence of a lifeguard during
all operating hours of the swimming pool. The petitioner believes that this
board was never granted the authority to make such a condition as part of
special use approval. State and county ordinances do not stipulate such a
requirement. If the petitioner is required to comply, it should be as a result of
an ordinance which would require all pools to have a lifeguard present during
operating hours of pools.
This petitioner would commit to have a lifeguard present during all operating
hours of the pool, at such a time as 75% of the lots in the subdivision are sold
to a third party. At that point there would be sufficient use to warrant the
services of a lifeguard being hired.
Michael Mohr questioned the percentage of the lots are sold at this time, and
what time frame is estimated when 75% of the lots would be sold. Ms.
Plavchak questioned why childrens’ lives after 75% of lots are sold are more
valuable than those children in homes on lots sold earlier.
Mr. Molitor said we are in a quasi area here, a gray area of the law where lines
are not clear. What we are talking about is a grace period of three years.
Ms. Rice questioned if this is a matter of law or of cost. Mr. Scimia said it is
both. Ms. Rice then inquired about the board’s stance if there has been an
error in the requirement of a lifeguard.
Mr. Molitor suggested an accommodation might be in order, to avoid the
prospect of litigation.
Ms. Plavchak stated they did operate in violation of their commitment,
regardless of whether the board was in error in their requirement at the time of
special use approval.
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Mr. Mohr asked how representatives respond to homeowners’ inquiry about
whether a lifeguard will be at the pool and on duty in the open hours.
Mr. Scimia asked that they be treated like other subdivisions, most of which
have no such lifeguard requirement. If there was an overwhelming concern,
support would be available for an ordinance.
Ms Plavchak took issue with the approach to save perhaps $5,000 for the cost
of a lifeguard by bringing up the possibility of the board acting outside their
area of jurisdiction in the original decision to require a lifeguard.
Leo Dierckman moved to table this item. Ms. Plavchak seconded the motion.
The motion was approved, and the item is tabled to the January 22 meeting.
Mr. Molitor announced he is working with the department staff on ordinance
updates. They hope to submit these to the Plan Commission in February.
There being no further business to come before the Board, the meeting
adjourned at 10:55 p.m.
__________________________
Charles W. Weinkauf, President
_______________________
Ramona Hancock, Secretary
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